I think 4 is a very legitimate and important question and I would think they should demand and get redlines on everything at every stage once the initial draft left OPR. I would also think they would want the OPR investigation to actually include all the info relating to Mukasey’s efforts to keep the OPR investigation on track or derail it, but that may be for another day.

With respect to 2, though, I wouldn’t be surprised if there is some precedent on that front. An OPR investigation isn’t a criminal investigation and a lot of aspects of ethics and professional responsiblity go to state of mind issues where someone would normally get a chance to have include “their side” especially if the investigators are concluding that a referral to a bar for further action should be made. We’ll see – I’m not sure how OPR works in a gov setting, but I think that it would not be uncommon. Whether that would be handled in an attachment/addition/annex vs actually revising the report, though, would be a world of difference.

Part of what struck me was that for all these classified torture programs, Mukasey wants OPR to hand out security clearances willy nilly to all the defense counsel for the “former” Dept attorneys (and was Bradbury separately represented since he was not “former” for a part of that and, if not, who at DOJ was representing him and are they now stuck with an ongoing duty to represent him so that we once again have DOJ lining up to defend those practices that they also have a duty to prosecute?)

Think about how the Gonzales investigation got shut down and what it took for Binyam Mohamed’s lawyers to get access (even after security clearances) to the 42 docs referred to by the UK court [BTW, the real grit in the UK Court’s ruling on the plea deal that they tried to cram through for Mohamed is that the prosecutors were certifying as an absolute to the defense counsel that Mohamed’s claims of torture were laughable and could absolutely be disproven in every respect by the evidence. So the Defense counsel were basically being told by other lawyers (DOJ AND JAG), subject to rules of ethics that there was no evidence of torture and were getting a plea offered that would take 30 years and possibly death off the table — when all the while these 42 docs and likely more that has been destroyed were out there – so it wasn’t just trying to get the deal, it was trying to get the deal based on that kind of misrep to counsel, fwiw]

In any event, how often has DOJ been directly involved in blocking access by defense counsel and yet, when it is Bybee or Yoo’s defense counsel, oh- well THAT is different.

Re: the issue of Bradbury and his ability to review that info prior to his Jan 15 “let me clean behind my ears” memo, I’d have to think it did influence the directions he took.

Here’s one area that makes me believe that. As soon as the memos started coming out, one of the things I have noted is their complete and total lack of what would normally be expected as a “facts” section for basic legal writing purposes. I haven’t seen this issue mentioned much in the general way, but it has struck me from the beginning. No private practice lawyer would give a reliance opinion without that kind of detailed fact review and it is a basic element of legal writing taught in law school and retained even in “real world” practice (which isn’t always the case)

I’m not saying the memos had redacted facts sections, they just didn’t have real facts sections. At times they tried to have something quasi similar, where they recited some gobbledygoop about how we “found ourselves” at “war with al-Qaeda” etc. but that’s not an operative facts section Nowhere were there discussions of the vetting for picking people up, paying of bounties, types of places they would be taken from, etc. etc. etc. as well as a lack of specifications of persons/treatments in torture analysis.

That just isn’t how a reliance opinion is written, plain and simple. Because, among other things, it doesn’t give the existing fact pattern operatives any grounds for reliance by omitting their operative facts – but more so because you can’t interpret law in a fact-absent vacuum. The example I have probably abused is to say that if a court rules that, under the facts of someone passing by an obviously burning home they hear a crying baby and they then forcibly break into the home and grab the baby and take it from the burning home – if a court rules under those circumstances that it was justified for someone to break into the home and snatch the baby from it’s bedroom —- that is NOT THE SAME as saying that a court has ruled it is ok to break into houses and take babies. You can’t divorce the holding from the facts.

SO – why does that make me think Bradbury’s clean up was influenced by the OPR review?

Bc for the first time someone (Bradbury) addresses this issue, even though he tries to do it in a very sideways manner. In his Jan 15 retractathon, after describing a state of panic and asseting that this was “perhaps” the context of the memos (uh huh) he says:

…several of the opinions identified below do not address specific and concrete policy proposals, but rather address in general terms the broad contours of legal issues potentially raised in the uncertain aftermath of the 9/11 attacks. Thus, several of these opinions represent a departure from this Office’s preferred practice of rendering formal opinions addressed to particular policy proposals and not undertaking a general survey of a broad area of the law or addressing general or amorphous hypothetical scenarios involving difficult questions of law.

Now, step back away from that a moment to digest what he has really said. All the arguments about there being “good faith reliance” on SPECIFIC authorizations from OLC for the SPECIFIC actions and situations — he’s just admitted the opinions can’t be used for that purpose. Which I think is pretty much obvious from their lack of factual recitations (what you can do vis a vis someone captured on an actual battlefield – burning house – vs someone who is picked up in a foreign country based on their name being the same name as one on a list – – those are very different things). But even so, why would he be pointing that out now even while DOJ and Obama and Bush and Congress are all concerted in their efforts to argue that OUR torturers were GOOD FAITH torturers?

Same reason I have pointed to for anyone at DOJ to ever even come close to doing the right thing. Personal consequences or liability. If OPR is about to breathe down your neck about issuing advisory opinions for future actions all without any factual review and based on broad assertions not reliant on specific fact patterns — you’re looking at some fairly concrete ethics issues.

It’s only in the face of that very basic problem that Bradbury finally antes up for what has been obvious from the first any of these memos surfaced – they are gobbledygoop and he admits it bc that is the way you walk away from saying that you authorized criminal acts to be undertaken in reliance on your opinions. fwiw, jmo